KARIM BUKSH Versus KARACHI ELECTRIC SUPPLY CORPORATION

Plaintiff being the son of deceased Amina Bib: aged about 54 years who died as a result of electrocution on Moula Madad Road (P.S, Chakiwara) on 17‑7‑1988 at 4‑15 p.m. has brought this suit for recovery of Rs.8,00,000 under the provisions of Fatal Accidents Act, 1955 in the following circumstances.

2. It is the case of the plaintiff that on the fateful date at 4‑15 p.m. overhead main electric wire on Moula Madad Road, Chakiwara broke down due to some defect and fell down on the road loosely disconnected from the electric pole, A report was lodged at the nearest complaint centre of K,E.S.C. in respect of snapping of wire but without any response.

It is said that in the meanwhile it started raining while the snapped wire lay unattended by K.E.S.C, At this moment deceased happened to pass by and suddenly came into contact with the invisible broken live wire on account of rain water. Consequently she died instantaneously as a result of electrocution. It is urged that the death of the deceased occurred on account of negligence and improper maintenance of lines by defendant who failed to take safety measures for protecting people at large against the danger and peril inherent in the electricity operation business.

3. At the time of her death deceased left the plaintiff (son). Muhammad Hassan (son), Mst. Kulsoom (daughter), Ghulam Jilani and Ayaz (grandsons) aged 3 years and 1/1‑2 years respectively. The deceased, besides being a house wife was engaged in stitching and cutting of the cloth with the art of Sindhi embroidery work from which she used to earn Rs.1,500 per month. Besides, she used to look after, nurse and take care of her minor grandsons which services could be had for a consideration of Rs.600 p.m. Moreover, she used to domestic work with monetary value of Rs.500 p.m. and spend only Rs.250 on her personal expenses.

4. Defendant, K.E.S.C. filed a written statement and challenged the maintainability of the suit on the averments that due to rain electric wires broke and accidentally the deceased came into contact with live broken wires and died on account of electrocution due to her own negligence. It is denied that the death was due to negligence on the part of K.E.S.C. but on account of natural incident taking place due to rain beyond the control and means of the defendant Corporation. A complaint was received at about 4‑30 p.m. when a gang was despatched and the broken wire was isolated from pole mounted transformer. All other allegations were denied including the locus standi of the plaintiff to file this suit and right of two minor grandsons as legal heirs of the deceased.

5. On the pleadings of the parties following issues were settled by consent;

Issues

(1) Whether the death of the deceased was caused by the actionable wrong, default in the performance of duty, negligence in not properly maintaining its overhead wires or keeping it physically fit or in not providing safety measures for protecting members of the public against the danger and peril inherent in their business operation?

(2) Whether the suit is maintainable as filed? '

(3) Whether the defendant carelessly failed to repair the broken overhead wire without undue delay?

(4) Whether the plaintiff and other legal heirs are entitled to compensation/damages as claimed.

(5) Whether the plaintiff is entitled to cost and interest as claimed.

(6) What other relief or reliefs the plaintiff is entitled to.

6. In support of his case, the plaintiff examined himself Exh.5 and Mst. Rahmat Exh.6 while the defendant Corporation examined Assistant Engineer, Abdul Jabbar Exh.7. Remaining evidence of the defendant was ordered to be recorded before the Commissioner, Mr. Muzaffarul Haq, Advocate but despite more than sufficient opportunities no other evidence was adduced before the said Commissioner who returned his report.

7. I have heard the learned counsel for the parties and with their assistance gone through the relevant evidence on record. My findings are as under for the following reasons:

Reasons

Issues Nos. 1 and 3:

8. Both the issues being inter‑related may be discussed together for the sake of convenience and brevity. Death of the deceased as a result of electrocution on account of snapping of the live electric wire from the pole mounted transformer on the day of incident is established by unimpeachable and unrebutted evidence of plaintiff Karim Bux and P.W. Mst. Rehmat. It is corroborated by the death certificate issued by Zonal Municipal Committee, w . Karachi South on the basis of entries made in the Register of deaths. In this a document column as regards death shows the cause of death as "electric shock in fact this position is also not controverted in the written statement filed by the defendant Corporation under the signature of its Secretary. It is urged in the written statement that Mst. Amina Bibi died due to negligence on her part and as a natural consequence. However, it is admitted that due to rain the electric wires were broken and incidentally the deceased Mst. Amina Bibi came into contact with live broken wire and died due to electrocution. While admitting the factum of unnatural death of the deceased as a result of electrocution, defendant Corporation asserted that death was not caused due to any negligence on its part but a natural incident took place due to rain beyond the control and means of their officials.

9. No doubt in the written statement neglect on the part of the defendant Corporation is denied but the same has been successfully established by uncontroverted evidence of the plaintiff who stated that the death of the deceased was caused by negligence and improper maintenance of its wire which broke down due to some physical defect. He maintained that the defendant also failed take and provide safety measures for protecting members of the public including the deceased against the danger and peril inherent in their business operation. Besides, the defendant demonstrated gross negligence, default in performance of duty and carelessness by failing to repair the broken wire without undue delay. No question to the contrary was put to the witness during the cross‑examination which by implication of law is deemed to be admitted. Needless to emphasise the death of deceased on the material day as a result of electrocution by coming into contact with the broken live wire remains undisputed.

10. At the hearing, it was vehemently urged with reference to Rule 76 of the Electricity Rules, 1937 framed in exercise of the powers conferred by section 37 of the Electricity Act, 1910 that it is imperative upon the defendant Corporation to ensure that every guard‑wire shall be connected with the earth at each point at which its electrical continuity is broken and, in the case of electric traction lines, shall also be connected, at intervals of not more than five spans with the rails. This rule further postulates that every guard‑wire shall have at, actual breaking load of not less than 1500 pounds and shall if of iron or steel, be galvanized. Besides every guard‑wire of or cross‑connected system of guard wire shall have sufficient current carrying capacity to ensure the rendering dead till the contact has been removed, of any live‑wire coming into contact with it, without risk of fusing of the guard‑wire or wires. No doubt in the evidence there are general allegations of non‑maintenance and improper maintenance of wires by K.E.S.C. but there is no specific allegation that there were no guard‑wires for preservation of the current or safety from perils of live broken wire. No such question was put to the defendant's witness D.W. Abdul Jabbar, working in the complaint centre of K.E.S.C. at the time of accident. This witness stated that maintenance of the electric wire is the job of maintenance department, therefore he could not say if and when the wire in question was checked by the said department. He denied the suggestion that guard‑wire is fixed on pole but claimed that it is fixed usually away from the pole. However, he did not see the pole where this incident took place. He conceded that the purpose of fixing guard‑wire is to disconnect electric current in the snapped wire of its touching the live‑wire. Be that as it may, it is evident from analysis of the statutory rules that it requires every electricity company to provide guard‑wires, for disconnecting electric current from the live wire for safety reason, the result emanating from the accident, suggests that no such wires were provided...It may, therefore, on preponderance of evidence be concluded that the death of the deceased did not take place in the natural course or on account of .her negligence but because of neglect, carelessness and improper maintenance of overhead lines and lack of safety measures for protecting the members of public, from the perils of snapping of wires.

11. Negligence on the part of the defendant in the sense of mere carelessness may not per se give rise to any cause of action but carelessness by itself may assume legal quality of negligence where there is duty to take care and where failure in that duty has caused damage. It was held b5~ Lord Macmillan in Donoghne v. Steverson (1932) AC 562) as under:

"The cardinal principle of liability is that the party complained of should owe to the party complaining a ditty to take care, and that the party complaining should he able to prove that he has suffered damage in consequence of a breach of that dirty. "

12. In an identical case S. Iqbal Hussain Jafri v. K.E.S.C. (1994 CLC 1903), G.H. Malik, (as he then was) expressed the view that duty to take care is, thus, an essential ingredient of the tort of negligence and unless such a duty is established, no case of actionable negligence can arise. "Duty" connotes the relationship between one person and another, imposing on the one an obligation, for the benefit of that other, to take reasonable care in all circumstances; and it is a question of law whether or not a duty to take care exists in the circumstances of a given case.

13. Applying the aforesaid test, to the facts of the instant case, it is evident that the defendant K.E.S.C. who is the manufacturer, distributor and supplier of electricity failed to perform its duty towards its consumers by reason of its gross neglect, improper maintenance and not taking adequare safeguards for the citizens in the event of snapping of live wires.

14. The rule of law that it is for the plaintiff to prove negligence on the part of the defendant is likely to cause hardship to a plaintiff because the thing which caused the injury is shown to be under the exclusive management and control of the defendant or the cause of accident is solely within the knowledge of the defendant, it is not possible for him to prove precisely the natural act or omission which gave rise to the event resulting in the accident. Such hardship is alleviated by doctrine of res ipsa loquitur which means that the things speak for themselves. This rule was approved by the Supreme Court in the case of Pakistan Steel Mills Corporation v. Abdul Habib (1993 SCMR 848) (855) as under:

"The doctrine applies firstly, when the thing that inflicted the damage was under the sole management and control of the defendant and secondly, that occurrence is such that it would not have happened without negligence and thirdly, that there must be evidence as to why or how the accident took place. In such circumstances defendants have to persuade the Court that accident did not occur on account of their negligence."

15. In the present case no doubt that defendants pleaded that the accident occurred on account of negligence of deceased and in law it was imperative on their part to product evidence to show that the deceased acted without due diligence or that she came into contact with the snapped live‑wire owing to her own lapse but they utterly failed to adduce even an iota of evidence on this aspect of the case. In the circumstances plea raised by the defendants must fail and is hereby dismissed it being without any merit and substance.

16. As to the repairs to the broken overhead wire defendants witness totally detached from maintenance department and exclusively dealing with the receipt of complaints from consumers miserably failed to rebut the presumption emerging from the evidence adduced by the plaintiff. He could not discharge the burden as to what steps were taken by the K.E.S.C. to avert the hazards flowing from breaking of wire on account of improper maintenance of overhead lines. Both the issues are answered accordingly and against the defendant.

17. Issue No.2:

This issue was not pressed by Mr. Habibur Rasheed, Advocate and is accordingly dropped.

18. Issue No. 4;

It is in the evidence that the plaintiff being the son of the deceased and doing no work was dependent on the deceased. Likewise other beneficiaries mentioned in paragraph 1 of the plaint are legal heirs of the deceased. It is, therefore, only just, fair and appropriate to hold that they are entitled to compensation for the loss of life of the deceased as they were deprived of the income of the deceased.

19. Issues Nos.5 and 6:

Although the age of the deceased as given in the plaint is 50 years, with reference to her National Identity Card learned counsel fairly conceded that she was aged about 54 years at the time of the fateful accident. Superior Courts of the country have taken the view that by reason of latest development in the field of medical science and technology normal span of life has gone up to 70 years. In all probability the deceased would have lived for sixteen years more and maintained the plaintiff and all other legal heirs. It was pleaded that the deceased used to earn about Rs.1,500 per month from stitching. Besides, looking after and taking care of the minor sons of the deceased and nursing, such services could have been hired by expending at least Rs.600 per month. Additionally domestic work done by her has the monetary value to the extent of Rs.500 per month. In his evidence plaintiff has adequately corroborated the aforesaid averments with further confirmatory evidence of Mst. kahmat, who has gone a step further by saying that she used to earn about Rs.3,000 to Rs.3,500 per month. It would, therefore, be just, appropriate and in the fitness of things to hold that the plaintiff and other beneficiaries from the deceased were deprived of her income at least to the tune of Rs.2,400 per month. Allowing her the allowance of Rs.800 per month for personal expenses her annual income would come to Rs.19,200. Computing her income for fourteen years the gross amount would come to Rs.3,07,200. Allowing 20% rise on the aggregate income on account of expected increase the net amount shall come to Rs. 3,68,640.

20. For the aforesaid facts and reasons and in the absence of any evidence to the contrary it is my considered view that the plaintiff and other legal heirs are entitled to recover from the defendant a sum of Rs.3,68,640 with interest at the rate of 14% per annum from the date of suit till payment and costs of the suit. Suit is accordingly decreed. Decretal amount shall be apportioned in equal shares. Share of minors on realization shall be invested in Defence Saving Certificates.

A.A./K‑27/K Suit decreed.